Cakes, Pork Chops and SB 101

Okay, this is sufficiently annoying that it justifies an “extra” post.

Defenders of SB 101 keep talking about the baker’s right to refuse to bake a cake with a swastika or the Muslim or Kosher butcher who the law “protects” from having to handle pork.

Excuse my french, but this is bull****.

If I go into a menswear shop and ask for a dress, am I being discriminated against when I’m informed the store doesn’t sell women’s clothes? Of course not.

Civil rights protections don’t require the baker who doesn’t bake swastika cakes, or the butcher who never sells pork to do so. Civil rights laws do keep the baker from refusing to sell the cakes he does make to “certain people” (And yes, that means that he has to sell the cakes he does make to the skinhead who comes into his shop, provided the skinhead is behaving himself and has money with which to make the purchase.)

The kosher butcher doesn’t have to carry pork, but he does have to sell his kosher chickens and beef to Muslim or Christian or even anti-Semitic customers, again, so long as those customers can pay and are abiding by the generally applicable rules of the shop.



  1. This is clear to me. The problem is that it seems to remain unclear to Pence, Bosma and the christian right.

  2. I think its clear to Pence and Bosma

    I also think its more palatable (for them) to delude themselves
    into believing its about religion (not about discrimination)
    rather than boldly admit they made a huge mistake. You know,
    being to stubborn to admit they were wrong etc.

  3. This is what “clarification” looks like (rapped to the rhythm of “this is what democracy looks like”)

  4. “It is difficult to get a man to understand something, when his salary depends on his not understanding it.” — Upton Sinclair

  5. I was confronted with the hypothetical that I’m a signmaker and someone from Westboro “Baptist Church” orders a sign that says, “God Hates F**s,” and asked if I’d be willing to fulfill the order. At first I said yes, but then I got to thinking: If I’m a signmaker, I make signs–not weapons. The sign I’d be asked to make wouldn’t be merely a sign; rather, it would be a weapon intended to injure people. But then I’ve been thinking some more: Would the fact that the request would force me to participate in hate speech–and therefore a crime–protect me?

  6. Pence is even making Tennessee’s fringe folks, Marsha Blackburn and Stacey Campfield, look almost normal…almost.

  7. Thank you, Mrs. Kennedy, for illuminating the issue. Those always righteous ones usually claim that THEY see the light. Pence blindly defends a hateful law. Get over it. It can’t be enforced and it will eventually be struck down. Do members of the Indiana Legislature and Mike Pence get paid for this this divisive nonsense?
    Little wonder that “pence” in English means “pennies”, coinage of so little value that we often don’t stoop to pick them up.

  8. It’s amazing to me that folks can confuse the freedom to be with the freedom to impose. People are perfectly free to believe and say most anything that doesn’t have an impact on others. Obviously what that excludes is any attempt to impose one’s beliefs or culture on others.

    A gay person trying to impose gay sex on anyone is clearly illegal. A gay person wanting to marry a consenting gay person only has an impact on them.

    Christians practicing Cristianity with other like believers are outside of the scope of our laws, by law. None of the issues brought out here limit those practices.

    However a Christian attempting to impose their beliefs on those who would choose otherwise, however it is attempted, violates simple civil rights concepts.

    Be as Christian as you want. Your life is entitled to that no more or less than other lives are entitled to be gay, or Muslim, or atheist, or vegan or straight.

  9. Why is this Indiana law considered discrimination when the federal law of 1993, signed by Bill Clinton, is not ? Has this discrimination issue been brought to light in the other 19 states that have this law? Examples I’ve seen where this type of law was utilized are: an American native boy wanted to wear his hair longer than the dress code allowed at his school; & charitable groups could feed the homeless for free.

  10. Susan, This law is different from those measures. The original RFRA–and virtually all state RFRAs–apply only to government, to situations where laws of general application conflict with a citizen’s religious exercise. In those cases, government must show a compelling interest in order to justify application of the law. In Indiana, the law applies to lawsuits between private individuals (hence the “cake” scenario). In addition, in many states with RFRAs, state civil rights laws protect against discrimination based on sexual orientation; Indiana’s law does not. It is these differences–plus the intervening Hobby Lobby case (most RFRAs are some 20 years old)–that raise concerns. And they are significant differences.

  11. Thanks Sheila for the amplification. These comments below from the Atlantic article also helped non-lawyer like me better understand the differences in Indiana’s law:

    “First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.

    “The new Indiana statute also contains this odd language: “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language.

    “What these words mean is, first, that the Indiana statute explicitly recognizes that a for-profit corporation has “free exercise” rights matching those of individuals or churches. A lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage.

    “Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government.”

  12. No, I’m not clear on this. Katie’s example, horrible though it is, would just be free speech in Indiana. It does not incite violence and the “protected class” clause doesn’t apply since Indiana has no anti-discrimination law. I own a business. If Eric Miller shows up wanting to purchase services from me, I can say no, can’t I?

  13. Unintended consequences – groups cancelling conventions here; also, I saw a list on Daily Kos of Indiana businesses to boycott, including Red Gold, Clabber Girl and Vera Bradley, among others. How many ordinary Hoosiers will be hurt by this ill-advised law? What a horrible embarrassment for our state.

  14. Civil rights also means that I have the ability to seek out and patronize a baker who doesn’t make g@ y wedding cakes. If I don’t have the ability to conduct economic activity with persons who share my political and religious beliefs, I’m being denied all sorts of rights, including my right to associate and my right to religion.

  15. “And yes, that means that he has to sell the cakes he does make to the skinhead who comes into his shop”

    But that’s not the issue. The issue is with custom work, not with goods on hand.

    A Jew, a Nazi and a Muslim go into a bakery.

    Each drops a $20 on the counter and leaves with a cake.

    Worst joke ever.

    Here’s an experiment for you, Sheila.

    Call Moishe’s Bake Shop in the Lower East Side.

    Tell them your dad is getting together with a few of the remaining members of his Nazi unit and would like a nice cake for the event. Ask if they’ll make a nice red, black and white cake for dad with the slogan “Ein Volk, ein Reich, ein Führer” done up real nice in icing on top.

    I just want to see what will happen. I’m also a little curious to see which generation picks up the phone. A kid might be dumb enough to take the order.

  16. Let’s try this again. Moshe is free NOW–without any RFRA–to refuse to bake a KKK cake, BECAUSE HE ISN’T REFUSING BASED UPON THE IDENTITY OF THE PERSON MAKING THE REQUEST. (In fact, my skinhead example is wrong, unless the transaction is in a state that somehow makes the skinhead a member of a protected class.) Just as a florist is free to say “I’m too busy to do your wedding,” or “I hate the arrangement you want me to make and worry that filling the order would be bad for business.” Civil rights protections prevent discrimination based upon the identity of the person being denied.


    What? The identity is a Nazi. No Nazi cakes from a Jewish bakery. If the Nazi also identifies with the Mets, the Nazi can get a Mets cake. The Mets identity gets served; the Nazi identity is turned away.

    I can even see a strict supervising rabbi not wanting a bakery under his supervision to put Christian symbols on products, but it’s their business.

    Estelle Constanza won’t ride in a German car. How’s that for racism? But it’s her business.

  18. Former Gopper; are you sure you are FORMER? Please re-read Sheila’s explanation of the law and how it actually works.

  19. As far as the cake is concerned …

    Pence has had it, eaten it and is now choking on it.

  20. I think the whole thing is about lawyers who want to take the thing to the supreme court, costing millions in fees, knowing it’s going to run smack dab into : “Congress shall make no laws regarding Religion…” They’ve done it before.

  21. “Just as a florist is free to say “I’m too busy to do your wedding,” or “I hate the arrangement you want me to make and worry that filling the order would be bad for business.””

    Ok, this is clarifying a lot of the fuzzy margins that have been hard to define. But just as the Jewish baker has always been able to reserve the right to refuse to make a Nazi cake (ugh, how I hate Godwinizing this argument), why can’t the Evangelical baker refuse to put a groom-groom cake topper on the cake? The argument you put forth clarifies why they cannot refuse to bake a wedding cake – it’s a service they provide for everyone else regardless of identity. The service they’re being asked to provide isn’t a cake, it’s a gay cake (I can’t believe I just wrote that…).

  22. So, an unmarried black gay couple with adopted children (1 hispanic 2 asian) are in a car wreck with a drunk driver. The EMT is a born again muslim…….

  23. 1,288 saw this post from a link on the Indiana Moral Mondays Facebook page. Thank you, this really helped us understand and, better, helped us to be able to explain what is wrong with SB 101.

Comments are closed.